Dr Christina Lienen highlights the key changes local authorities can expect with the move from the DoLS regime to Liberty Protection Safeguards in April 2022.
The Liberty Protection Safeguards scheme, which was introduced under Schedule 1 to the Mental Capacity (Amendment) Act 2019, is, after some delay, expected to come into force in April 2022, so, in about six months from now.
The scheme will replace the current Deprivation of Liberty Safeguards (DoLS) regime in Schedule A1 to the Mental Capacity Act 2005.
It will provide protection for people aged 16 and above (that's a key change, see below) who are or who need to be deprived of their liberty in order to enable their care or treatment, and who lack the mental capacity to consent to those arrangements.
The scheme has been set up in response to concerns about the complexity of the current DoLS scheme in Schedule A1 of the MCA 2005, which many social workers find difficult to navigate, and the resource implications for local authorities following the Cheshire West judgment. The idea is to make the process of regularising a person's deprivation of liberty more straightforward and streamlined. A new Code of Practice is expected to be published prior to the Liberty Protection Safeguards scheme entering into force, likely during the winter of 2021/2022.
1. The new scheme will extend protections to more people, including young people aged 16 and 17.
2. The new scheme will extend protections to more settings (read: no longer only care homes and hospitals!). The Liberty Protection Safeguards will apply to individuals residing in domestic settings who need to be deprived of their liberty. This will include the person's own home and family home, Shared Lives and supported living. In other words, all individuals who need to be deprived of their liberty will be protected under the Liberty Protection Safeguards, regardless of where they reside, without the need to go to court (subject, of course, to specific circumstances that require an application to the Court of Protection, e.g., where there is a dispute that cannot be resolved otherwise). This means, hopefully, that the burden of large-scale court applications should be somewhat lifted from local authorities.
3. Three assessments will form the basis of the authorisation of Liberty Protection Safeguards: (1) a capacity assessment, (2) a 'medical assessment' to determine whether a person has a mental disorder, and (3) a 'necessary and proportionate' assessment to determine if the arrangements are necessary to prevent harm to the person and whether they are proportionate to the likelihood and seriousness of that harm.
4. There will be an explicit duty to consult those caring for the person and those interested in the person's welfare.
5. Where it is reasonable to believe that a person would not wish to reside or receive care or treatment at the specified place, or the arrangements provide for the person to receive care or treatment apply mainly in an independent hospital, the case must be considered by an approved mental capacity professional (AMCP). This is designed to provide an additional protection. Local authorities are encouraged to consider what is on offer, or should be offered, by way of training for professionals/officers to convert from being a best interest assessor (BIAs) to becoming an approved mental capacity professional (AMCPs). Have a look at the Government's website - on 25 June 2021, the Department of Health and Social Care published guidance to support national training to get people ready for the implementation of the new scheme.
6. The Liberty Protection Safeguards create a new role for CCGs and NHS trusts in authorising arrangements. In England, if the arrangements are mainly taking place in an NHS hospital, in most cases the Responsible Body will be the 'hospital manager' (which in most cases will be the NHS trust responsible for that hospital).
7. The current burden of annual renewals will be lightened, as authorisation of a deprivation of liberty is planned to be amenable to be in place be for up to three years, after two initial periods each capped at 12 months.
For an overview of the new process, from referral to assessment all the way to reviews, follow this link: Liberty Protection Safeguards: overview of the process - GOV.UK (www.gov.uk).
More generally, if you and your departments want to have a head start, a helpful first port of call is the Government's collection of factsheets, which are regularly added to: see Liberty Protection Safeguards factsheets - GOV.UK (www.gov.uk).
Dr Christina Lienen is a member of Chambers' Health & Social Care and Court of Protection teams. She is currently seconded to the London Borough of Tower Hamlets' Adult Social Services and Safeguarding legal department on a part-time basis, where, amongst other things, she works on DoLS issues and other matters under the Mental Capacity Act 2005.
Cornerstone Barristers are happy to advise local authorities on the practicalities and legal challenges associated with transitioning to the new system.